USA v. $85, 201.00 In United States Currency

MOTION Order production of witnesses & documents pursuant to Rule 30 & Rule 45

S.D. Ill.July 29, 2011

Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS UNITED STATES OF AMERICA, ) ) Plaintiff, ) Civil No: 3:10-cv-00079 ) vs. ) ) $85,201.00 IN UNITED STATES ) CURRENCY, ) ) Defendant, ) ) And ) MAUD L. CALLAHAN, and ) DANIEL PHILLIPS, ) ) Claimants. ) MOTION OF CLAIMANTS MAUDE L. CALLAHAN AND DANIEL PHILLIPS TO ORDER PRODUCTION OF WITNESSES AND DOCUMENTS PURSUANT TO RULE 30 AND RULE 45 F.R.Cv. P COMES NOW Plaintiffs, by counsel, and for their Motion to order production of witnesses and documents pursuant to Rule 30 and Rule 45 F.R.Cv.P and states: 1. That the instant case is a civil action in rem pursuant to the provisions of 21 U.S.C. §881 (a) (6) for the seizure and forfeiture of monies following a seizure by DEA agents on October 21, 2009 within the Southern District of Illinois. 2. That the proceedings are subject to the supplemental rules for admiralty and Maritime claims, Rule C. 3. That the supplemental rules for admiralty and maritime claims which are also include seizure proceedings, allows for interrogatories in in rem actions. Rule C (6), (c). Case 3:10-cv-00079-JPG-DGW Document 21 Filed 07/29/11 Page 1 of 4 Page ID #106 Page 2 of 4 4. That the general rules of Civil Procedure for U.S. District Courts are also applicable to the in rem seizure proceedings herein, which rules allow for depositions upon oral examination under Rule 30 F.R.Cv.P and allow for subpoenas for production of witnesses and documents under Rule 45 F.R. Cv. P. 5. That claimants have discussed the production of witnesses and any necessary documents with the United States Attorney’s Office representing Plaintiff and have been advised that there is a possible application of the rule in United States ex rel Touhy vs. Regan, _____ U.S. _____ (1951) indicating that the DEA or other interested agencies will need to undertake the review process before determining to comply with subpoenas. 6. That Plaintiff forwarded interrogatories and request for documents to claimants, all of which have been complied with. 7. That the Government, pursuant to consent and agreement with claimant’s counsel, has taken the deposition of claimants and all remaining documents available to claimants were then produced at said deposition. 8. That this matter is presently set for trial on October 7th, 2011 and claimants will need to take the depositions of certain identified Government agents including local law enforcement officers, Kevin Thebeau, Kevin Harris, and Detective Hayes of the Troy Police Department as well as Officer Cerna of the Collinsville Police Department. Claimants have also identified at least one federal officer, Agent Belcher of the DEA, but there has been no agreement to produce said witnesses. Case 3:10-cv-00079-JPG-DGW Document 21 Filed 07/29/11 Page 2 of 4 Page ID #107 Page 3 of 4 9. Rule 30 does not require leave of court to take depositions of witnesses for the opposing party. 10. Claimant believes it is in the best interest of justice that this court enter an Order directing that the Government produce all of its witnesses and documents pursuant to the request for production and interrogatories sent by claimants and also produced them for the purpose of deposing them and preparing for trial now set for October 7, 2011. WHEREFORE, having fully pled, claimants Phillips and Callahan respectfully pray for an Order of this Court directing the U.S. Attorney’s Office to produce their designated witness particularly including Kevin Thebeau, Kevin Harris and Detective Hayes of the Troy Police Department Officer Cerna of the Collinsville Police Department and Agent Belcher of the DEA as well as any other witnesses it intends to produce at trial and further requests that this court issue an order requiring the Government to answer all its interrogatories and request to produce in a timely fashion prior to depositions and for such other and further relief as to this court seem meet and just. Respectfully submitted, MARTIN, MALEC & LEOPOLD P.C. /s/ James M. Martin ______________ James M. Martin 1007 Olive - 5th Floor St. Louis MO 63101 (314) 231-3323 (314) 231-6739 fax mmllaw@swbell.net Attorney for Claimants Dan Phillips, Maud Callahan & Howard Motors LLC Case 3:10-cv-00079-JPG-DGW Document 21 Filed 07/29/11 Page 3 of 4 Page ID #108 Page 4 of 4 CERTIFICATE OF SERVICE Pursuant to SDIL-LR 7.1 (b) and E-Filing Rule 8, I hereby certify that on the ________day of ___________, 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Pursuant to Fed. R. Civ. P. 5 and SDIL-LR 7.1 (b), I certify that I mailed, by United States Postal Service, the documents to the following non-registered participants: United States Attorney A. COURTNEY COX Michael Thompson Assistant United States Attorney Nine Executive Drive Fairview Heights IL 62208 e-mail: Michael.Thompson2@usdoj.gov Brian M. Pierce Proposed Co-Counsel for Maud Callahan, Dan Phillips & Howard Motors LLC The Gothic Building 54 E. Mill Street #400 Akron OH 44308 bpierce@gmpvlaw.com Attorney for Claimants Dan Phillips, Maud Callahan & Howard Motors LLC /s/ James M. Martin _________ Case 3:10-cv-00079-JPG-DGW Document 21 Filed 07/29/11 Page 4 of 4 Page ID #109